(b) Data and statistics on separated and unaccompanied
children 98 - 100 26

I. OBJECTIVES OF THE GENERAL COMMENT

1. The objective of this general comment is to draw attention to the particularly vulnerable situation of unaccompanied and separated
children; to outline the multifaceted challenges faced by States and other actors in ensuring that such
children are able to
access and enjoy their rights; and, to provide guidance on the protection, care and proper treatment of unaccompanied and separated
children based on the entire legal framework provided by the Convention on the Rights of the
child (the “Convention”), with particular reference to the principles of non-
discrimination, the
best interests of the child and the right of the
child to express his or her
views freely.

2. The issuing of this general comment is motivated by the Committee’s observation of an increasing number of
children in such situations. There are varied and numerous reasons for a
child being unaccompanied or separated, including: persecution of the
child or the
parents; international conflict and civil war; trafficking in various contexts and forms, including sale by
parents; and the search for better economic opportunities.

3. The issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of such
children, including the following: unaccompanied and separated
children face greater risks of, inter alia,
sexual exploitation and abuse, military
recruitment,
child labour (including for their foster families) and
detention. They are often discriminated against and denied
access to
food, shelter, housing,
health services and
education. Unaccompanied and separated girls are at particular risk of gender-based violence, including domestic violence. In some situations, such
children have no
access to proper and appropriate identification, registration, age assessment, documentation,
family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated
children are routinely denied entry to or detained by border or immigration officials. In other cases they are admitted but are denied
access to
asylumprocedures or their
asylum claims are not handled in an age and gender-sensitive manner. Some countries prohibit separated
children who are recognized as refugees from applying for
family reunification; others permit reunification but impose conditions so restrictive as to make it virtually impossible to achieve. Many such
children are granted only temporary
status, which ends when they turn 18, and there are few effective return programmes.

4. Concerns such as these have led the Committee to frequently raise issues related to unaccompanied and separated
children in its concluding observations. This general comment will compile and consolidate standards developed, inter alia, through the Committee’s monitoring efforts and shall thereby provide clear guidance to States on the obligations deriving from the Convention with regard to this particular vulnerable group of
children. In applying these standards, States parties must be cognizant of their evolutionary character and therefore recognize that their obligations may develop beyond the standards articulated herein. These standards shall in no way impair further-reaching rights and benefits offered to unaccompanied and separated
children under regional human rights instruments or national systems, international and regional refugee law or international humanitarian
law.

II. STRUCTURE AND SCOPE of the GENERAL COMMENT

5. This general comment applies to unaccompanied and separated
children who find themselves outside their country of
nationality (consistent with article 7) or, if stateless, outside their country of habitual residence. The general comment applies to all such
children irrespective of their residence
status and reasons for being abroad, and whether they are unaccompanied or separated. However, it does not apply to
children who have not crossed an international border, even though the Committee acknowledges the many similar challenges related to internally displaced unaccompanied and separated
children, recognizes that much of the guidance offered below is also valuable in relation to such
children, and strongly encourages States to adopt relevant aspects of this general comment in relation to the protection, care and treatment of unaccompanied and separated
children who are displaced within their own country.

6. While the mandate of the Committee is confined to its supervisory function in relation to the Convention, its interpretation efforts must be conducted in the context of the entirety of applicable international human rights norms and, therefore, the general comment adopts a holistic approach to the question of the proper treatment of unaccompanied and separated
children. This acknowledges that all human rights, including those contained in the Convention, are indivisible and interdependent. The importance of other international human rights instruments to the protection of the
child is also recognized in the preamble to the Convention.

III. DEFINITIONS

7. “Unaccompanied
children” (also called unaccompanied
minors) are
children, as defined in article 1 of the Convention, who have been separated from both
parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.

8. “Separated
children” are
children, as defined in article 1 of the Convention, who have been separated from both
parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include
children accompanied by other adult
family members.

9. A “
child as defined in article 1 of the Convention”, means “every human being below the age of 18 years unless under the law applicable to the
child,
majority is attained earlier”. This means that any instruments governing
children in the territory of the State cannot define a
child in any way that deviates from the norms determining the
age of majority in that State.

10. If not otherwise specified, the guidelines below apply equally to both unaccompanied and separated
children.

11. “Country of origin” is the country of
nationality or, in the case of a stateless
child, the country of habitual residence.

IV. APPLICABLE PRINCIPLES

(a) Legal obligations of States parties for all unaccompanied or separated
children in their territory and measures for their implementation

12. State obligations under the Convention apply to each
child within the State’s territory and to all
children subject to its
jurisdiction (art. 2). These State obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or areas from a State’s territory or by defining particular zones or areas as not, or only partly, under the
jurisdiction of the State. Moreover, State obligations under the Convention apply within the borders of a State, including with respect to those
children who come under the State’s
jurisdiction while attempting to enter the country’s territory. Therefore, the enjoyment of rights stipulated in the Convention is not limited to
children who are citizens of a
State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all
children - including
asylum-seeking, refugee and migrant
children - irrespective of their
nationality, immigration
status or
Statelessness.

13. Obligations deriving from the Convention vis-à-vis unaccompanied and separated
children apply to all branches of government (executive, legislative and judicial). They include the obligation to establish national legislation; administrative structures; and the necessary research,
information, data compilation and comprehensive training activities to support such measures. Such legal obligations are both negative and positive in nature, requiring States not only to refrain from measures infringing on such
children’s rights, but also to take measures to ensure the enjoyment of these rights without
discrimination. Such responsibilities are not only limited to the provision of protection and
assistance to
children who are already unaccompanied or separated, but include measures to prevent separation (including the implementation of safeguards in case of evacuation). The positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify
children as being unaccompanied or separated at the earliest possible stage, including at the border, to carry out tracing activities and, where possible and if in the
child’s best interest, to reunify separated and unaccompanied
children with their families as soon as possible.

14. As reaffirmed in its general comment No. 5 (2003) (paras. 18-23), States parties to the Convention have to ensure that the provisions and principles of the treaty are fully reflected and given legal effect in relevant domestic legislation. In case of any conflict in legislation, predominance should always be given to the Convention, in light of article 27 of the Vienna Convention on the Law of Treaties.

15. In order to ensure a conducive legal environment and in light of article 41 (b) of the Convention, States parties are also encouraged to ratify other international instruments that address issues relating to unaccompanied and separated
children, including the two Optional Protocols to the Convention on the Rights of the
child (on the involvement of
children in armed conflict and on the sale of
children,
childprostitution and
child pornography), the Convention against
Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), the Convention on the Elimination of All Forms of
discrimination against Women, the Convention relating to the
status of Refugees (“the 1951 Refugee Convention”)

and the Protocol relating to the
status of Refugees, the Convention on the Reduction of
Statelessness, the Convention relating to the
status of Stateless Persons, the Hague Convention on
Protection of children and Cooperation in Respect of
Inter-Country Adoption, the Hague Convention on
jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the
Protection of children, the four Geneva Conventions of 12 August 1949, the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of
victims of International
armed conflicts (Protocol I) of 8 June 1977, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
victims of Non-International
armed conflicts (Protocol II) of 8 June 1997. The Committee also encourages States parties to the Convention and others concerned to take into account the Office of the United Nations High Commissioner for Refugees (UNHCR)’s Guidelines on Protection and Care (1994) and the Inter-Agency Guiding Principles on Unaccompanied and Separated
children.
[1]

16. In view of the absolute nature of obligations deriving from the Convention and their
lex specialis
character, article 2, paragraph 3, of the International Covenant on
Economic, Social and Cultural Rights would not apply with regard to unaccompanied and separated
children. In application of article 4 of the Convention, the particular vulnerability of unaccompanied and separated
children, explicitly recognized in article 20 of the Convention, must be taken into account and will result in making the assignment of available
resources to such
children a priority. States are expected to accept and facilitate
assistance offered within their respective mandates by the United Nations
children’s Fund (UNICEF), UNHCR and other agencies (article 22 (2) of the Convention) in order to meet the needs of unaccompanied and separated
children.

17. The Committee believes that
reservations made by States parties to the Convention should not in any way limit the rights of unaccompanied and separated
children. As is systematically done with States parties during the reporting process, the Committee recommends that, in the light of the Vienna Declaration and Programme of Action adopted at the 1993 World Conference on Human Rights in Vienna,
[2]reservations limiting the rights of unaccompanied and separated
children be reviewed with the objective of withdrawal.

18. The principle of non-
discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied
children. In particular, it prohibits any
discrimination on the basis of the
status of a
child as being unaccompanied or separated, or as being a refugee,
asylum seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender. Measures should also be taken to address possible misperceptions and stigmatization of unaccompanied or separated
children within the society. Policing or other measures concerning unaccompanied or separated
children relating to
public order are only permissible where such measures are based on the law; entail individual rather than collective assessment; comply with the principle of proportionality; and represent the least intrusive option. In order not to violate the prohibition on non-
discrimination, such measures can, therefore, never be applied on a group or collective basis.

19. Article 3 (1) states that “[i]n all actions concerning
children, whether undertaken by public or private social
welfareinstitutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration”. In the case of a displaced
child, the principle must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated
child’s
life.

20. A determination of what is in the
best interests of the child requires a clear and comprehensive assessment of the
child’s
identity, including her or his
nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the
childaccess to the territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

21. Subsequent steps, such as the appointment of a competent guardian as expeditiously as possible, serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied or separated
child. Therefore, such a
child should only be referred to
asylum or other
procedures after the appointment of a guardian. In cases where separated or unaccompanied
children are referred to
asylumprocedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

22. Respect for best interests also requires that, where competent authorities have placed an unaccompanied or separated
child “for the purposes of care, protection or treatment of his or her physical or mental
health”, the State recognizes the right of that
child to a “periodic
review” of their treatment and “all other circumstances relevant to his or her placement” (article 25 of the Convention).

23. The obligation of the
State party under article 6 includes protection from violence and
exploitation, to the maximum extent possible, which would jeopardize a
child’s
right to life,
survival and development. Separated and unaccompanied
children are vulnerable to various risks that affect their
life,
survival and development such as trafficking for purposes of sexual or other
exploitation or involvement in criminal activities which could result in harm to the
child, or in extreme cases, in death. Accordingly, article 6 necessitates vigilance by States parties in this regard, particularly when organized crime may be involved. While the issue of trafficking of
children is beyond the scope of this general comment, the Committee notes that there is often a link between trafficking and the situation of separated and unaccompanied
children.

24. The Committee is of the view that practical measures should be taken at all levels to protect
children from the risks mentioned above. Such measures could include: priority
procedures for
childvictims of trafficking, the prompt appointment of guardians, the provision of

information to
children about the risks they may encounter, and establishment of measures to provide follow-up to
children particularly at risk. These measures should be regularly evaluated to ensure their effectiveness.

25. Pursuant to article 12 of the Convention, in determining the measures to be adopted with regard to unaccompanied or separated
children, the
child’s
views and wishes should be elicited and taken into account (art. 12 (1)). To allow for a well-informed
expression of such
views and wishes, it is imperative that such
children are provided with all relevant
information concerning, for example, their entitlements, services available including means of communication, the
asylum process,
family tracing and the situation in their country of origin (arts. 13, 17 and 22 (2)). In guardianship, care and accommodation arrangements, and legal representation,
children’s
views should also be taken into account. Such
information must be provided in a manner that is appropriate to the maturity and level of understanding of each
child. As participation is dependent on reliable communication, where necessary, interpreters should be made available at all stages of the procedure.

(f) Respect for the principle of non-refoulement

26. In affording proper treatment of unaccompanied or separated
children, States must fully respect non-refoulement obligations deriving from international human rights, humanitarian and refugee law and, in particular, must respect obligations codified in article 33 of the 1951 Refugee Convention and in article 3 of CAT.

27. Furthermore, in fulfilling obligations under the Convention, States shall not return a
child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the
child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in any country to which the
child may subsequently be removed. Such non-refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-State actors or whether such violations are directly intended or are the indirect consequence of action or inaction. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner and should, for example, take into account the particularly serious consequences for
children of the insufficient provision of
food or
health services.

28. As underage
recruitment and
participation in hostilities entails a high risk of irreparable harm involving fundamental human rights, including the
right to life, State obligations deriving from article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the
child on the involvement of
children in armed conflict, entail extraterritorial effects and States shall refrain from returning a
child in any manner whatsoever to the borders of a State where there is a real risk of underage
recruitment, including
recruitment not only as a combatant but also to provide sexual services for the military or where there is a real risk of direct or indirect
participation in hostilities, either as a combatant or through carrying out other military duties.

(g) Confidentiality

29. States parties must protect the confidentiality of
information received in relation to an unaccompanied or separated
child, consistent with the obligation to protect the
child’s rights, including the right to
privacy (art. 16). This obligation applies in all settings, including
health and social
welfare. Care must be taken that
information sought and legitimately shared for one purpose is not inappropriately used for that of another.

30. Confidentiality concerns also involve respect for the rights of others. For example, in obtaining, sharing and preserving the
information collected in respect of unaccompanied and separated
children, particular care must be taken in order not to endanger the
well-being of persons still within the
child’s country of origin, especially the
child’s
family members. Furthermore,
information relating to the whereabouts of the
child shall only be withheld vis-à-vis the
parents where required for the safety of the
child or to otherwise secure the “best interests” of the
child.

V. RESPONSE TO GENERAL AND SPECIFIC PROTECTION NEEDS

(a) Initial assessment and measures

31. The
best interests of the child must also be a guiding principle for determining the priority of protection needs and the chronology of measures to be applied in respect of unaccompanied and separated
children. This necessary initial assessment process, in particular, entails the following:

Prioritized identification of a
child as separated or unaccompanied immediately upon arrival at ports of entry or as soon as their presence in the country becomes known to the authorities (art. 8). Such identification measures include age assessment and should not only take into account the physical appearance of the individual, but also his or her psychological maturity. Moreover, the assessment must be conducted in a scientific, safe,
child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the
child; giving due respect to human
dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a
child, she or he should be treated as such;

Prompt registration by means of an initial interview conducted in an age appropriate and gender-sensitive manner, in a
language the
child understands, by professionally qualified persons to collect biodata and social history to ascertain the
identity of the
child, including, wherever possible,
identity of both
parents, other siblings, as well as the
citizenship of the
child, the siblings and the
parents;

In continuation of the registration process, the recording of further
information in order to meet the specific needs of the
child. This
information should include:

Reasons for being separated or unaccompanied;

Assessment of particular vulnerabilities, including
health, physical, psychosocial, material and other protection needs, including those deriving from domestic violence, trafficking or trauma;

All available
information to determine the potential existence of international protection needs, including those: due to a “well-founded fear of being persecuted for reasons of race,
religion,
nationality, membership of a particular social group or
political opinion” in the
child’s country of origin (article 1 A (2), 1951 Refugee Convention); deriving from external aggression, occupation, foreign domination or events seriously disturbing
public order (article 1 (2), Convention Governing the Specific Aspects of Refugee Problems in Africa); or relating to the indiscriminate effects of generalized violence;

Unaccompanied and separated
children should be provided with their own personal
identity documentation as soon as possible;

Tracing of
family members to be commenced as early as possible (arts. 22 (2), 9 (3) and 10 (2)).

32. Any further actions relating to the residence and other
status of the
child in the territory of the State should be based on the findings of an initial protection assessment carried out in accordance with the above
procedures. States should refrain from referring unaccompanied and separated
children into
asylumprocedures if their presence in the territory does not raise the question of international
refugee protection needs. This is without prejudice to the
obligation of States to refer unaccompanied or separated
children to relevant
procedures serving
child protection, such as those foreseen under
childwelfare legislation.

(b) Appointment of a guardian or adviser and legal representative (arts. 18 (2)
and 20 (1))

33. States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated
child’s best interests. Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or separated
child is identified and maintain such guardianship arrangements until the
child has either reached the
age of majority or has permanently left the territory and/or
jurisdiction of the State, in compliance with the Convention and other international obligations. The guardian should be consulted and informed regarding all actions taken in relation to the
child. The guardian should have the authority to be present in all planning and decision-making processes, including immigration and
appeal hearings, care arrangements and all efforts to search for a durable solution. The guardian or adviser should have the necessary expertise in the field of childcare, so as to ensure that the interests of the
child are safeguarded and that the
child’s legal, social,
health, psychological, material and educational needs are appropriately covered by, inter alia, the guardian acting as a link between the
child and existing specialist agencies/individuals who provide the continuum of care required by the
child. Agencies or individuals whose interests could potentially be in conflict with those of the
child’s should not be eligible for guardianship. For example, non-related adults whose primary relationship to the
child is that of an employer should be excluded from a guardianship role.

34. In the case of a separated
child, guardianship should regularly be assigned to the accompanying adult
family member or non-primary
family caretaker unless there is an indication that it would not be in the
best interests of the child to do so, for example, where the accompanying adult has abused the
child. In cases where a
child is accompanied by a non
family adult or caretaker, suitability for guardianship must be scrutinized more closely. If such a guardian is able and willing to provide day-to-day care, but unable to adequately represent the
child’s best interests in all spheres and at all levels of the
child’s
life, supplementary measures (such as the appointment of an adviser or legal representative) must be secured.

35.
review mechanisms shall be introduced and implemented to monitor the quality of the exercise of guardianship in order to ensure the
best interests of the child are being represented throughout the decision-making process and, in particular, to prevent abuse.

36. In cases where
children are involved in
asylumprocedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.

37. At all times
children should be informed of arrangements with respect to guardianship and legal representation and their opinions should be taken into consideration.

38. In large-scale
emergencies, where it will be difficult to establish guardianship arrangements on an individual basis, the rights and best interests of separated
children should be safeguarded and promoted by States and organizations working on behalf of these
children.

(c) Care and accommodation arrangements (arts. 20 and 22)

39. Unaccompanied or separated
children are
children temporarily or permanently
deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and
assistance provided by the relevant State.

40. Mechanisms established under national law in order to ensure
alternative care for such
children in accordance with article 22 of the Convention, shall also cover unaccompanied or separated
children outside their country of origin. A wide range of options for care and accommodation arrangements exist and are explicitly acknowledged in article 20 (3) as follows: “… inter alia,
foster placement,
kafalah
of Islamic law,
Adoption or, if necessary, placement in suitable
institutions for the
care of children”. When selecting from these options, the particular vulnerabilities of such a
child, not only having lost connection with his or her
family environment, but further finding him or herself outside of his or her country of origin, as well as the
child’s age and gender, should be taken into account. In particular, due regard ought to be taken of the desirability of continuity in a
child’s upbringing and to the ethnic, religious, cultural and linguistic background as assessed in the identification, registration and documentation process. Such care and accommodation arrangements should comply with the following parameters:

In accordance with the principle of
family unity, siblings should be kept together;

A
child who has adult relatives arriving with him or her or already living in the country of
asylum should be allowed to stay with them unless such action would be contrary to the
best interests of the child. Given the particular vulnerabilities of the
child, regular assessments should be conducted by social
welfare personnel;

Irrespective of the care arrangements made for unaccompanied or separated
children, regular supervision and assessment ought to be maintained by qualified persons in order to ensure the
child’s physical and psychosocial
health, protection against domestic violence or
exploitation, and
access to educational and vocational skills and opportunities;

States and other organizations must take measures to ensure the effective protection of the rights of separated or unaccompanied
children living in
child-headed households;

In large-scale
emergencies, interim care must be provided for the shortest time appropriate for unaccompanied
children. This interim care provides for their security and physical and emotional care in a setting that encourages their general
development;

children must be kept informed of the care arrangements being made for them, and their opinions must be taken into consideration.

41. States should ensure that
access to
education is maintained during all phases of the displacement cycle. Every unaccompanied and separated
child, irrespective of
status, shall have full
access to
education in the country that they have entered in line with articles 28, 29 (1) (c), 30 and 32 of the Convention and the general principles developed by the Committee. Such
access should be granted without
discrimination and in particular, separated and unaccompanied girls shall have equal
access to formal and informal
education, including vocational training at all levels.
access to quality
education should also be ensured for
children with special needs, in particular
children with disabilities.

42. The unaccompanied or separated
child should be registered with appropriate school authorities as soon as possible and get
assistance in maximizing learning opportunities. All unaccompanied and separated
children have the right to maintain their cultural
identity and values, including the maintenance and
development of their native
language. All adolescents should be allowed to enrol in vocational/professional training or
education, and early learning

programmes should be made available to young
children. States should ensure that unaccompanied or separated
children are provided with school certificates or other documentation indicating their level of
education, in particular in preparation of relocation, resettlement or return.

43. States shall, in particular where government capacity is limited, accept and facilitate the
assistance offered by UNICEF, the United Nations Educational, Scientific and Cultural Organization (UNESCO), UNHCR and other United Nations agencies within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or
non-governmental organizations (art. 22 (2)) in order to meet the educational needs of unaccompanied and separated
children.

44. States should ensure that separated and unaccompanied
children have a
standard of living adequate for their physical, mental, spiritual and moral
development. As provided in article 27 (2) of the Convention, States shall provide
material assistance and support programmes, particularly with regard to
nutrition, clothing and housing.

45. States shall, in particular where government capacity is limited, accept and facilitate the
assistance offered by UNICEF, UNESCO, UNHCR and other United Nations agencies within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or
non-governmental organizations (art. 22 (2)) in order to secure an
adequate standard of living for unaccompanied and separated
children.

(f) Right to enjoy the highest attainable standard of
health and facilities for the treatment of illness and
Rehabilitation of
health (arts. 23, 24 and 39)

46. When implementing the right to enjoy the highest attainable standard of
health and facilities for the treatment of illness and
Rehabilitation of
health under article 24 of the Convention, States are obligated to ensure that unaccompanied and separated
children have the same
access to
health care as
children who are ... nationals ... .

47. In ensuring their
access, States must assess and address the particular plight and vulnerabilities of such
children. They should, in particular, take into account the fact that unaccompanied
children have undergone separation from
family members and have also, to varying degrees, experienced loss, trauma, disruption and violence. Many such
children, in particular those who are refugees, have further experienced pervasive violence and the stress associated with a country afflicted by war. This may have created deep-rooted feelings of helplessness and undermined a
child’s trust in others. Moreover, girls are particularly susceptible to marginalization, poverty and suffering during armed conflict, and many may have experienced gender-based violence in the context of armed conflict. The profound trauma experienced by many affected
children calls for special sensitivity and attention in their care and
Rehabilitation.

48. The obligation under article 39 of the Convention sets out the duty of States to provide
Rehabilitation services to
children who have been
victims of any form of abuse,

49. States shall, in particular where government capacity is limited, accept and facilitate
assistance offered by UNICEF, the World
health Organization (WHO), United Nations Joint Programme on HIV/AIDS (UNAIDS), UNHCR and other agencies (art. 22 (2)) within their respective mandates, as well as, where appropriate, other competent intergovernmental organizations or
non-governmental organizations in order to meet the
health and
health-care needs of unaccompanied and separated
children.

(g) Prevention of trafficking and of sexual and other forms of
exploitation,
abuse and violence (arts. 34, 35 and 36)

50. Unaccompanied or separated
children in a country outside their country of origin are particularly vulnerable to
exploitation and abuse. Girls are at particular risk of being trafficked, including for purposes of
sexual exploitation.

51. Articles 34 to 36 of the Convention must be read in conjunction with special protection and
assistance obligations to be provided according to article 20 of the Convention, in order to ensure that unaccompanied and separated
children are shielded from trafficking, and from sexual and other forms of
exploitation, abuse and violence.

52. Trafficking of such a
child, or “re-trafficking” in cases where a
child was already a victim of trafficking, is one of many dangers faced by unaccompanied or separated
children. Trafficking in
children is a threat to the fulfilment of their
right to life,
survival and development (art. 6). In accordance with article 35 of the Convention, States parties should take appropriate measures to prevent such trafficking. Necessary measures include identifying unaccompanied and separated
children; regularly inquiring as to their whereabouts; and conducting
information campaigns that are age-appropriate, gender-sensitive and in a
language and medium that is understandable to the
child. Adequate legislation should also be passed and effective mechanisms of enforcement be established with respect to labour regulations and border crossing.

53. Risks are also great for a
child who has already been a victim of trafficking, resulting in the
status of being unaccompanied or separated. Such
children should not be penalized and should receive
assistance as
victims of a serious human rights violation. Some trafficked
children may be eligible for
refugee status under the 1951 Convention, and States should ensure that separated and unaccompanied trafficked
children who wish to seek
asylum or in relation to whom there is otherwise indication that international protection needs exist, have
access to
asylumprocedures.
children who are at risk of being re-trafficked should not be returned to their country of origin unless it is in their best interests and appropriate measures for their protection have been taken. States should consider complementary forms of protection for trafficked
children when return is not in their best interests.

(h) Prevention of military
recruitment and protection against effects of war (arts. 38 and 39)

54. State obligations deriving from article 38 of the Convention and from articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the
child on the involvement of
children in armed conflict also apply to unaccompanied and separated
children. A State must take all necessary measures to prevent
recruitment or use of such
children by any party to a conflict. This also applies to former
child soldiers who have defected from their units and who require protection against re-
recruitment.

Care arrangements

55. Care arrangements for unaccompanied and separated
children shall be made in a manner which prevents their
recruitment, re-
recruitment or use by any party to a conflict. Guardianships should not be given to individuals or organizations who are directly or indirectly involved in a conflict.

56.
child soldiers should be considered primarily as
victims of armed conflict. Former
child soldiers, who often find themselves unaccompanied or separated at the cessation of the conflict or following defection, shall be given all the necessary support services to enable reintegration into normal
life, including necessary psychosocial counselling. Such
children shall be identified and demobilized on a priority basis during any identification and separation operation.
child soldiers, in particular, those who are unaccompanied or separated, should not normally be interned, but rather, benefit from special protection and
assistance measures, in particular as regards their demobilization and
Rehabilitation. Particular efforts must be made to provide support and facilitate the reintegration of girls who have been associated with the military, either as combatants or in any other capacity.

57. If, under certain circumstances, exceptional internment of a
child soldier over the age of 15 years is unavoidable and in compliance with international human rights and humanitarian law, for example, where she or he poses a serious security threat, the conditions of such internment should be in conformity with international standards, including article 37 of the Convention and those pertaining to
juvenile justice, and should not preclude any tracing efforts and priority participation in
Rehabilitation programmes.

Non-refoulement

58. As under-age
recruitment and
participation in hostilities entails a high risk of irreparable harm involving fundamental human rights, including the
right to life, State obligations deriving from article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the Convention on the Rights of the
child on the involvement of
children in armed conflict,

entail extraterritorial effects and States shall refrain from returning a
child in any manner whatsoever to the borders of a State where there is a real risk of under-age
recruitment or participation, directly or indirectly, in hostilities.

60. States shall develop, where needed, in cooperation with international agencies and NGOs, a comprehensive age-appropriate and gender-sensitive system of psychological support and
assistance for unaccompanied and separated
children affected by armed conflict.

61. In application of article 37 of the Convention and the principle of the
best interests of the child, unaccompanied or separated
children should not, as a general rule, be detained.
detention cannot be justified solely on the basis of the
child being unaccompanied or separated, or on their migratory or residence
status, or lack thereof. Where
detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37 (b) of the Convention that requires
detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated
children from
detention and their placement in other forms of appropriate accommodation.

62. In addition to national requirements, international obligations constitute part of the law governing
detention. With regard to
asylum-seeking, unaccompanied and separated
children, States must, in particular, respect their obligations deriving from article 31 (1) of the 1951 Refugee Convention. States should further take into account that illegal entry into or stay in a country by an unaccompanied or separated
child may also be justified according to general principles of law, where such entry or stay is the only way of preventing a violation of the fundamental human rights of the
child. More generally, in developing policies on unaccompanied or separated
children, including those who are
victims of trafficking and
exploitation, States should ensure that such
children are not criminalized solely for reasons of illegal entry or presence in the country.

63. In the exceptional case of
detention, conditions of
detention must be governed by the
best interests of the child and pay full respect to article 37 (a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for
children and that separate them from adults, unless it is considered in the
child’s best interests not to do so. Indeed, the underlying approach to such a programme should be “care” and not “
detention”. Facilities should not be located in isolated areas where culturally appropriate
communityresources and
access to legal aid are unavailable.
children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in
detention,
children have the right to
education which ought, ideally, to take place outside the
detention premises in order to facilitate the continuance of their
education upon release. They also have the right to
recreation and
play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37 (d) of the Convention, unaccompanied or separated
children deprived of their liberty shall be provided with prompt and free
access to legal and other appropriate
assistance, including the assignment of a legal representative.

(a) General

64. The obligation stemming from article 22 of the Convention to take “appropriate measures” to ensure that a
child, whether unaccompanied or accompanied, who is seeking
refugee status receives appropriate protection entails, inter alia, the responsibility to set up a functioning
asylum system and, in particular, to enact legislation addressing the particular treatment of unaccompanied and separated
children and to build capacities necessary to realize this treatment in accordance with applicable rights codified in the Convention and in other international human rights,
refugee protection or humanitarian instruments to which the State is a party. States facing resource constraints in staging such capacity-building efforts are strongly encouraged to seek international
assistance, including that provided by UNHCR.

65. Taking into account the complementary nature of the obligations under article 22 and those deriving from international refugee law, as well as the desirability of consolidated standards, States should apply international standards relating to refugees as they progressively evolve when implementing article 22 of the Convention.

66.
asylum-seeking
children, including those who are unaccompanied or separated, shall enjoy
access to
asylumprocedures and other complementary mechanisms providing international protection, irrespective of their age. In the case that facts become known during the identification and registration process which indicate that the
child may have a well-founded fear or, even if unable to explicitly articulate a concrete fear, the
child may objectively be at risk of

persecution for reasons of race,
religion,
nationality, membership of a particular social group or
political opinion, or otherwise be in need of international protection, such a
child should be referred to the
asylum procedure and/or, where relevant, to mechanisms providing complementary protection under international and domestic law.

67. Unaccompanied or separated
children for whom there is no indication of being in need of international protection should not automatically, or otherwise, be referred to
asylumprocedures, but shall be protected pursuant to other relevant
child protection mechanisms such as those provided under youth
welfare legislation.

(c) Procedural safeguards and support measures (art. 3 (3))

68. Appropriate measures required under article 22 (1) of the Convention must take into account the particular vulnerabilities of unaccompanied and separated
children and the national legal framework and conditions. Such measures should be guided by the considerations set out below.

69. An
asylum-seeking
child should be represented by an adult who is familiar with the
child’s background and who is competent and able to represent his or her best interests (see section V (b), “Appointment of a guardian or adviser or legal representative”). The unaccompanied or separated
child should also, in all cases, be given
access, free of charge, to a qualified legal representative, including where the application for
refugee status is processed under the normal
procedures for adults.

70.
refugee status applications filed by unaccompanied and separated
children shall be given priority and every effort should be made to render a decision promptly and fairly.

71. Minimum procedural guarantees should include that the application will be determined by a competent authority fully qualified in
asylum and refugee matters. Where the age and maturity of the
child permits, the opportunity for a personal interview with a qualified official should be granted before any final decision is made. Wherever the
child is unable to communicate directly with the qualified official in a common
language, the
assistance of a qualified interpreter should be sought. Moreover, the
child should be given the “benefit of the doubt”, should there be credibility concerns relating to his or her story as well as a possibility to
appeal for a formal
review of the decision.

72. The interviews should be conducted by representatives of the refugee determination authority who will take into account the special situation of unaccompanied
children in order to carry out the
refugee status assessment and apply an understanding of the history,
culture and background of the
child. The assessment process should comprise a case-by-case examination of the unique combination of factors presented by each
child, including the
child’s personal,
family and cultural background. The guardian and the legal representative should be present during all interviews.

73. In cases of large-scale refugee movements where individual
refugee status determination is not possible, States may grant
refugee status to all members of a group. In such circumstances, all unaccompanied or separated
children are entitled to be granted the same
status as other members of the particular group.

74. When assessing refugee claims of unaccompanied or separated
children, States shall take into account the
development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by
children. Persecution of kin; under-age
recruitment; trafficking of
children for
prostitution; and
sexual exploitation or subjection to female
genital mutilation, are some of the
child-specific forms and manifestations of persecution which may justify the granting of
refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such
child-specific forms and manifestations of persecution as well as gender-based violence in national
refugee status-determination
procedures.

75. Staff involved in
status-determination
procedures of
children, in particular those who are unaccompanied or separated, should receive training on adopting an application of international and national refugee law that is
child, cultural, and gender-sensitive. To properly assess
asylum claims of
children,
information on the situation of
children, including those belonging to minorities or marginalized groups, should be included in government efforts to collect country of-origin
information.

76. Unaccompanied or separated
children recognized as refugees and granted
asylum do not only enjoy rights under the 1951 Refugee Convention, but are also entitled to the fullest extent to the enjoyment of all human rights granted to
children in the territory or subject to the
jurisdiction of the State, including those rights which require a lawful stay in the territory.

77. In the case that the requirements for granting
refugee status under the 1951 Refugee Convention are not met, unaccompanied and separated
children shall benefit from available forms of complementary protection to the extent determined by their protection needs. The application of such complementary forms of protection does not obviate States’ obligations to address the particular protection needs of the unaccompanied and separated
child. Therefore,
children granted complementary forms of protection are entitled, to the fullest extent, to the enjoyment of all human rights granted to
children in the territory or subject to the
jurisdiction of the State, including those rights which require a lawful stay in the territory.

78. In line with the generally applicable principles and, in particular, those relating to the responsibilities of States with regard to unaccompanied or separated
children finding themselves in their territory,
children who are neither granted
refugee status nor benefiting from complementary forms of protection, will still enjoy protection under all norms of the Convention as long as they remain de facto within the States’ territories and/or subject to its
jurisdiction.

VII.
family reunification, RETURN AND OTHER FORMS
OF DURABLE SOLUTIONS

(a) General

79. The ultimate aim in addressing the fate of unaccompanied or separated
children is to identify a durable solution that addresses all their protection needs, takes into account the
child’s view and, wherever possible, leads to overcoming the situation of a
child being unaccompanied or separated. Efforts to find durable solutions for unaccompanied or separated
children should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a
child being unaccompanied or separated. Following a rights-based approach, the search for a durable solution commences with analysing the possibility of
family reunification.

80. Tracing is an essential component of any search for a durable solution and should be prioritized except where the act of tracing, or the way in which tracing is conducted, would be contrary to the
best interests of the child or jeopardize fundamental rights of those being traced. In any case, in conducting tracing activities, no reference should be made to the
status of the
child as an
asylum-seeker or refugee. Subject to all of these conditions, such tracing efforts should also be continued during the
asylum procedure. For all
children who remain in the territory of the host State, whether on the basis of
asylum, complementary forms of protection or due to other legal or factual obstacles to removal, a durable solution must be sought.

81. In order to pay full respect to the
obligation of States under article 9 of the Convention to ensure that a
child shall not be separated from his or her
parents against their will, all efforts should be made to return an unaccompanied or separated
child to his or her
parents except where further separation is necessary for the
best interests of the child, taking full account of the right of the
child to express his or her
views (art. 12) (see also section IV (e), “Right of the
child to express his or her
views freely”). While the considerations explicitly listed in article 9, paragraph 1, sentence 2, namely, cases involving abuse or
neglect of the
child by the
parents, may prohibit reunification at any location, other best-interests considerations can provide an obstacle to reunification at specific locations only.

82.
family reunification in the country of origin is not in the
best interests of the child and should therefore not be pursued where there is a “reasonable risk” that such a return would lead to the violation of fundamental human rights of the
child. Such risk is indisputably documented in the granting of
refugee status or in a decision of the competent authorities on the
applicability of non-refoulement obligations (including those deriving from article 3 of the Convention against
Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on
Civil and Political Rights). Accordingly, the granting of
refugee status constitutes a legally binding obstacle to return to the country of origin and, consequently, to
family reunification therein. Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the
child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the
child is of paramount importance and a precondition for the enjoyment of any other rights.

83. Whenever
family reunification in the country of origin is not possible, irrespective of whether this is due to legal obstacles to return or whether the best-interests-based balancing test has decided against return, the obligations under article 9 and 10 of the Convention come into effect and should govern the host country’s decisions on
family reunification therein. In this context, States parties are particularly reminded that “applications by a
child or his or her
parents to enter or leave a
State party for the purpose of
family reunification shall be dealt with by States parties in a positive, humane and expeditious manner” and “shall entail no adverse consequences for the applicants and for the members of their
family” (art. 10 (1)). Countries of origin must respect “the right of the
child and his or her
parents to leave any country, including their own, and to enter their own country” (art. 10 (2)).

(c) Return to the country of origin

84. Return to the country of origin is not an option if it would lead to a “reasonable risk” that such return would result in the violation of fundamental human rights of the
child, and in particular, if the principle of non-refoulement applies. Return to the country of origin shall in principle only be arranged if such return is in the
best interests of the child. Such a determination shall, inter alia, take into account:

The safety, security and other conditions, including socio-economic conditions, awaiting the
child upon return, including through
home study, where appropriate, conducted by social network organizations;

The “desirability of continuity in a
child’s upbringing and to the
child’s ethnic, religious, cultural and linguistic background” (art. 20).

85. In the absence of the availability of care provided by
parents or members of the
extended family, return to the country of origin should, in principle, not take place without advance secure and concrete arrangements of care and custodial responsibilities upon return to the country of origin.

86. Exceptionally, a return to the
home country may be arranged, after careful balancing of the
child’s best interests and other considerations, if the latter are rights-based and override
best interests of the child. Such may be the case in situations in which the
child constitutes a serious risk to the security of the State or to the society. Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations.

87. In all cases return measures must be conducted in a safe,
child-appropriate and gender sensitive manner.

88. Countries of origin are also reminded in this context of their obligations pursuant to article 10 of the Convention and, in particular, to respect “the right of the
child and his or her
parents to leave any country, including their own, and to enter their own country”.

(d) Local integration

89. Local integration is the primary option if return to the country of origin is impossible on either legal or factual grounds. Local integration must be based on a secure legal
status (including residence
status) and be governed by the Convention rights that are fully applicable to all
children who remain in the country, irrespective of whether this is due to their recognition as a refugee, other legal obstacles to return, or whether the best-interests-based balancing test has decided against return.

90. Once it has been determined that a separated or unaccompanied
child will remain in the
community, the relevant authorities should conduct an assessment of the
child’s situation and then, in consultation with the
child and his or her guardian, determine the appropriate long-term arrangements within the local
community and other necessary measures to facilitate such integration. The long-term placement should be decided in the
best interests of the child and, at this stage, institutional care should, wherever possible, serve only as a last resort. The separated or unaccompanied
child should have the same
access to rights (including to
education, training,
employment and
health care) as enjoyed by national
children. In ensuring that these rights are fully enjoyed by the unaccompanied or separated
child, the host country may need to pay special attention to the extra measures required to address the
child’s vulnerable
status, including, for example, through extra
language training.

91. States must have full respect for the preconditions provided under article 21 of the Convention as well as other relevant international instruments, including in particular the Hague Convention on
Protection of children and Cooperation in Respect of
Inter-Country Adoption and its 1994 Recommendation Concerning the Application to Refugee and other Internationally
Displaced children when considering the
Adoption of unaccompanied and separated
children. States should, in particular, observe the following:

Adoption of unaccompanied or separated
children should only be considered once it has been established that the
child is in a position to be adopted. In practice, this means, inter alia, that efforts with regard to tracing and
family reunification have failed, or that the
parents have consented to the
Adoption. The consent of
parents and the consent of other persons,
institutions and authorities that are necessary for
Adoption must be free and informed. This supposes notably that such consent has not been induced by payment or compensation of any kind and has not been withdrawn;

Unaccompanied or separated
children must not be adopted in haste at the height of an emergency;

Any
Adoption must be determined as being in the
child’s best interests and carried out in keeping with applicable national, international and customary law;

The
views of the
child, depending upon his/her age and degree of maturity, should be sought and taken into account in all
Adoptionprocedures. This requirement implies that he/she has been counselled and duly informed of the consequences of
Adoption and of his/her consent to
Adoption, where such consent is required. Such consent must have been given freely and not induced by payment or compensation of any kind;

Priority must be given to
Adoption by relatives in their country of residence. Where this is not an option, preference will be given to
Adoption within the
community from which the
child came or at least within his or her own
culture;

Where there is reasonable hope of successful tracing and
family reunification is in the
child’s best interests;

If it is contrary to the expressed wishes of the
child or the
parents;

Unless a reasonable time has passed during which all feasible steps to trace the
parents or other surviving
family members has been carried out. This period of time may vary with circumstances, in particular, those relating to the ability to conduct proper tracing; however, the process of tracing must be completed within a reasonable period of time;

Adoption in a country of
asylum should not be taken up when there is the possibility of voluntary repatriation under conditions of safety and
dignity in the near future.

(f) Resettlement in a third country

92. Resettlement to a third country may offer a durable solution for an accompanied or separated
child who cannot return to the country of origin and for whom no durable solution can be envisaged in the host country. The decision to resettle an unaccompanied or separated
child must be based on an updated, comprehensive and thorough best-interests assessment, taking into account, in particular, ongoing international and other protection needs. Resettlement is particularly called for if such is the only means to effectively and sustainably protect a
child against refoulement or against persecution or other serious human rights violations in the country of stay. Resettlement is also in the best interests of the unaccompanied or separated
child if it serves
family reunification in the resettlement country.

93. The best-interests assessment determination, prior to a decision to resettle, needs also to take into account other factors such as: the envisaged duration of legal or other obstacles to a
child’s return to his or her
home country; the
child’s right to preserve his or her
identity, including
nationality and name (art. 8); the
child’s age, sex, emotional state, educational and

family background; continuity/discontinuity of care in the host country; the desirability of continuity in a
child’s upbringing and to the
child’s ethnic, religious, cultural and linguistic background (art. 20); the right of the
child to preserve his or her
family relations (art. 8) and related short, medium and long-term possibilities of
family reunion either in the
home, host, or resettlement country. Unaccompanied or separated
children should never be resettled to a third country if this would undermine or seriously hamper future reunion with their
family.

94. States are encouraged to provide resettlement opportunities in order to meet all the resettlement needs related to unaccompanied and separated
children.

VIII. TRAINING, DATA AND STATISTICS

(a) Training of personnel dealing with unaccompanied and separated
children

95. Particular attention should be paid to the training of officials working with separated and unaccompanied
children and dealing with their cases. Specialized training is equally important for legal representatives, guardians, interpreters and others dealing with separated and unaccompanied
children.

96. Such training should be specifically tailored to the needs and rights of the groups concerned. Nevertheless, certain key elements should be included in all training programmes, including:

Principles and provisions of the Convention;

Knowledge of the country of origin of separated and unaccompanied
children;

98. It is the experience of the Committee that data and statistics collected with regard to unaccompanied and separated
children tends to be limited to the number of arrivals and/or number of requests for
asylum. This data is insufficient for a detailed analysis of the implementation of the rights of such
children. Furthermore, data and statistics are often collected by a variety of different ministries or agencies, which can impede further analysis and presents potential concerns with regard to confidentiality and a
child’s right to
privacy.

99. Accordingly, the
development of a detailed and integrated system of data collection on unaccompanied and separated
children is a prerequisite for the
development of effective policies for the implementation of the rights of such
children.

100. Data collected within such a system should ideally include but not be limited to: basic biographical data on each
child (including age, sex, country of origin and
nationality, ethnic group); total number of unaccompanied and separated
children attempting to enter the country and the number that have been refused entry; number of requests for
asylum; number of legal representatives and guardians assigned to such
children; legal and immigration
status (i.e.
asylum-seeker, refugee, temporary resident permit); living arrangements (i.e. in
institutions, with families or living independently); enrolment in school or vocational training;
family reunifications; and, numbers returned to their country of origin. In addition, States parties should consider collecting qualitative data that would allow them to analyse issues that remain insufficiently addressed, such as for instance,
disappearances of unaccompanied and separated
children and the impact of trafficking.

Notes

[1] These Guiding Principles are jointly endorsed by the International Committee of the Red Cross, the International Rescue Committee, Save the
children/UK, UNICEF, UNHCR, and World Vision International. They are intended to guide the
work of all members of the Inter Agency Standing Committee with respect to unaccompanied and separated
children.

[2] Vienna Declaration and Programme of Action (A/CONF.157/23) adopted by the World Conference on Human Rights, held in Vienna, 14-25 June 1993.

[3] On
child-specific forms and manifestations of persecution more generally, see section VI (d) below “
child sensitive assessment of protection needs, taking into account persecution of a
child-specific nature”.